North Carolina Divorce Lawyers BlogAccessing Adoption Records: Part 2
In Part 1, we talked about how adult adoptees can find out information about their adoptions and birth families. However, for some adoptees, particularly older adoptees, adoption agencies may no longer have detailed records – or any records at all – of their birth families, making it harder to get information. Fortunately, each county’s court keeps the court records of adoptions that go through that county, and the Department of Social Services has all adoption records that have gone through the state. Court adoption records are sealed, which means they usually can’t be accessed, but there are court proceedings that can unseal those records in some situations. Getting court adoption records unsealed is a time-consuming and uncertain process, but if you have already tried contacting the adoption agency, working with a post adoption intermediary program, or genetic testing options and haven’t found the information you are looking for, the courts are available as a last resort.
To have adoption records unsealed, the information you are trying to get has to be “necessary for the protection of the adoptee or the public.”[1] To determine if that is true, the court looks at why you say you want the information in the record, whether there are other ways to get that information, whether the person who would be identified by unsealing the records is still alive, and the preferences of the adoptee and the birth parents, if those preferences are known. The courts balance the interests of the adoptee, the adoptive parents, and the birth parents. If any of the interests are in direct conflict, the interests of the adoptee are supposed to win out. However, courts tend to lean away from unsealing adoption records if possible.
In 1977, a Court of Appeals case addressed the “necessary” standard. In In re the Adoption of Spinks,[2] the court held that there must be a “compelling” reason to overturn the confidentiality of adoption records. In this case, an adult adoptee had a “disturbed mental outlook” because she didn’t know who her birth parents were. She had also been tormented by vicious rumors about who her birth parents might be, which had caused her severe mental distress. The adoptee had made significant efforts to find the identities of her birth parents, and her adoptive parents were supportive of her search. The court looked at the age and mental capability of the adoptee, the possibility of medical necessity, and any severe emotional or psychological difficulties that were caused by the adoption. They also considered the interest of the public – supporting adoption is good public policy, and birth parents need to know that they are unlikely to be outed unless they agree to it.
To ask a court to unseal your adoption records, you start by filing a motion with the clerk of the county where your adoption was finalized and then serve notice on the Department of Social Services and on the adoption agency that facilitated your adoption. If you are just looking for non-identifying information, the Clerk of Court can review your motion, hear from you, and decide whether to give you the information you are asking for. If you are asking for identifying information, a judge will usually hear your case. The judge will weigh the factors and decide whether your record will be unsealed.
If you have exhausted your other options and still want more information about your adoption, you should prepare to explain your “compelling” reasons that the information is “necessary” for your protection. To help you present that argument to the court in the best way possible, contact an experienced family law attorney.
[1] N.C.G.S. § 48-9-105(a).
[2] In re the Adoption of Spinks, 32 N.C. App. 422 (1977).